MT GHAFOORAN Vs. RAM CHANDRA DAS

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of execution proceedings. Mt. Ghafooran is the widow of one Sarfaraz. After the death of Sarfaraz, Ram Chandra Das, decree-holder, instituted a suit to recover a sum of money due by Sarfaraz against his heirs and obtained a simple money decree against the assets of the deceased in the hands of his heirs. After he had-obtained the decree, he applied for execution and certain immovable property was attached and ordered to be sold. The widow of Sarfaraz filed objections, contending that she had been in possession of the property of her husband in lieu of her dower and therefore it could only be sold subject to her charge in respect of her dower. The learned Munsif held that her position was like that of a prior mortgagee in possession of the property in lieu of her dower debt, and therefore the property could only be sold subject to her claim for dower. He allowed the objections and directed that the-attached property be sold subject to Mt. Ghafooran's claim for Rs. 2,500 on account of her dower debt. Against this order the decree holder preferred an appeal. The learned District Judge who heard it held that the widow could not contend that she had a charge against the property of her husband of which she was in possession in lieu of her dower and he therefore allowed the appeal and dismissed the objections. The present appeal has been preferred against that order of the learned District Judge.

(2.) It is not known whether the widow obtained possession over the property in suit in lieu of her dower during the lifetime of her husband or after his death. Both the Courts below are agreed that the widow is in possession of the property in lieu of her dower. It is conceded here by the learned Counsel for the appellant that the widow cannot claim to have a charge or lien over the property which is in her possession in lieu of her dower. It is further admitted that her position is like that of any other unsecured creditor; but the contention is that as she obtained possession of the property in lieu of her dower, she has a right to remain in possession till her dower, is paid. I have heard the learned Counsel on both sides and have come to the conclusion that the contention raised on behalf of the appellant is well founded and should be given effect to. In the case of Mt. Bebee Bachun V/s. Hamid Hossein (1870-72) 14 M.I.A. 377 (PC), it was held by their Lordships of the Privy Council that a Mohomedan widow, whose husband died without issue, having been put in possession of her husband's estate as a co heir and for her dower, had a lien, as a creditor, on the estate and was entitled to retain possession until her dower debt was satisfied. This position is thoroughly well understood. In another case, Hamira Bibi V/s. Zabeida Bibi A.I.R. 1916 P.C. 46 at p. 588 (of 38 All.), their Lordships of the Privy Council laid down the law on the point as follows: But the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right however is no great or than that of any other unsecured creditor except that if she lawfully, with the express or implied consent of the husband, or his other heirs obtain possession of the whole or part of his estate, to satisfy her claim with the rents...accruing therefrom, she is entitled to retain such possession until it is satisfied. This is called the widow's lien for dower, and this is the only creditor's lien of the Mussalman. law which has received recognition in the British Indian Courts and at this Board.

(3.) The position of the widow and the creditor, if she had not obtained possession, would have been equal. The unsecured creditor has a right to recover the amount due to him from the husband or his estate. Similarly the widow has a right to recover the amount due to her in lieuv of her dower from the estate of her husbands If she had not been in possession, then she could not claim any preference over the "other creditor, for the simple reason that the debts due to her which would be a dower debt and the debts due to their creditors would rank equally and there would be no difference between the two cases, but the matter would assume a different as peoral together, if the widow, with the consent of her husband or during the lifetime or with the consent of: his heirs after his death, obtains possession over the estate in lieu of her dower. In that case the other creditor cannot be entitled to say that he should be allowed to sell the property in possession of the widow, regardless of the right which she obtained by taking possession of the estate. If the husband had put his wife in. possession of his estate in lieu of her dower, then he himself could not have dispossessed the wife, unless her dower was paid. I do not think that an unsecured creditor can have a greater right than the husband. The learned Counsel for the respondent has argued that the right of the Mahomedan widow to hold possession over the estate which she got in lieu of her dower is only against the heirs of her husband and not against his creditors. In support of this contention he has relied on a ruling, Kaniz Fatima Begum V/s. Bam Nandan A.I.R. 1923 All. 331. In my opinion the ruling does not decide the question which I have to decide and which is as to whether or no a widow who has obtained possession over the estate of her husband, in lieu of her dower, can insist that her possession over the estate should not be disturbed at the instance of another creditor of her husband, so long as the dower due to her is not paid. My view is that the widow is entitled to retain possession till her dower debt is paid.